Connors v. Town of Burlington

• Decision Date: 09 March 1950
• Citation: 91 N.E.2d 212,325 Mass. 494
• Parties: CONNORS et al. v. TOWN OF BURLINGTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 494

91 N.E.2d 212

CONNORS et al. v. TOWN OF BURLINGTON.

Supreme Judicial Court of Massachusetts, Middlesex.

March 9, 1950

Argued Feb. 9 1950.

G. A. McLaughlin Boston, C. S. McLaughlin, Boston, for plaintiffs.

K. L. Johnson Woburn, for defendant.

Before QUA, C. J and LUMMUS, RONAN, and SPALDING, JJ.

LUMMUS, Justice.

This is a petition to the Land Court under G.L. (Ter.Ed.) c. 240, § 14A inserted by St.1934, c. 263, § 2, to determine the validity of a zoning by-law of Burlington. See G.L. (Ter.Ed.) c. 185, § 1(j 1/2), inserted by St.1934, c. 263, § 1, Pitman v. City of Medford, 312 Mass. 618, 45 N.E.2d 973; Fish v. Town of Canton, 322 Mass. 219, 77 N.E.2d 231; Barney & Casey Co. v. Town of Milton, 324 Mass. 440, 87 N.E.2d 9. The judge ruled that the zoning by-law is valid in its application to the land and buildings of the petitioners, who are brothers engaged in the operation of a piggery. The case comes here on the exceptions of the petitioners.

The following facts were found. The petitioners own a large tract of land in Burlington, of which about thirty acres are devoted to the commercial keeping and raising of about fifteen hundred pigs. About one thousand feet away is the house of one Baxter, and two other houses are within half a mile, with numerous other houses in the neighborhood. Except for the piggery, the land of the petitioners is little used. The piggery causes nauseating odors, and offensive flies and rats at the Baxter house. The town is small but growing, and is devoted to residence and farming. The land of the petitioners is not unsuitable for farming or for houses, although it may be used more profitably as a piggery. Its use as a piggery produces foul odors which are carried to great distances, and rats and flies as a 'natural result.'

The piggery has been operated since 1935. In 1943 the town adopted a zoning by-law. Under the by-law the use of land in a Residence A district was limited to dwellings and a few other innocuous uses. The land in question was zoned in a Residence B district, in which trade and commercial purposes were forbidden, and farming was permitted except when injurious, noxious or offensive to the neighborhood. It was provided that 'Farming does not include the keeping or raising of more than three * * * swine.' Obviously the keeping of a piggery such as was operated by the petitioners was forbidden.

Before the adoption of the zoning by-law, the piggery was in operation and was as large as it is now. By G.L. (Ter.Ed.) c. 40, § 26, as appearing in St.1933, c. 269, § 1, a zoning by-law does not apply to buildings or structures existing before its adoption, nor to the existing use of any such building or structure, nor to land to the extent to which it was used before the adoption of such by-law. But it does apply to any change of use and to any alteration of a building or structure amounting to reconstruction, extension or structural change.

The judge found that the operation of the piggery as conducted before the adoption of the zoning by-law was valid as a nonconforming use under said section 26 above cited. Plainly the decision below was right in that respect. Inspector of Buildings of Burlington v. Murphy, 320 Mass. 207, 68 N.E.2d 918.

In 1948 the petitioners obtained a permit to erect a new building measuring fifty feet by twenty feet, to replace...